BROULIMS REZONE RULED INVALID
March, 29 2022
Listen to KHOL's News Brief March 31 | Victor Broulim's Hits Another Roadblock or read it here.
Last June, the Victor City Council voted to rezone the old Victor Elementary School site to accommodate a new Broulim's grocery store despite strong opposition from a number of folks throughout the valley . . . .Over 100 opposition letters were sent to the city during the hearing process. One of the biggest issues raised by the public - as well as our organization - was the fact that Victor City ordinances required a traffic study prior to the zone change being considered. No traffic study was ever conducted despite all the numerous requests by our legal staff and the public.
How did the City rule on the neighbor’s appeal?
The City held a brief appeal hearing, and without much discussion, reaffirmed their prior decision of waiving the traffic study - to be done at a later date when Broulim’s submitted a site plan. City Attorney Herb Heimerl is quoted as saying, “This is one of the longest and most considered applications we have taken . . . . It’s very difficult to challenge successfully, especially in a place like southeast Idaho.”
What did the neighbors do next?
Shortly thereafter, neighbors of the Broulim’s property took the issue “upstairs” so to speak. Through great expense and effort, they formally appealed the City’s decision to the district court. One of the main arguments they raised was lack of a required traffic study, and cited the Fischer case. The Broulim’s corporation intervened in the case and argued that the traffic study could be done later, and the City of Victor concurred with Broulim’s in their briefs.
So what did the Judge say?
Well, Judge Boyce considered all of these arguments, and recently issued his Memorandum Decision on the case. He agreed with the neighbors and ruled that per the well-established case law in Fischer v. City of Ketchum, the City Could not waive the required traffic study. He vacated the City’s approval of the rezone and remanded the case back to the city, requiring a traffic study to be done and due process given to the public.
So what does Victor have to do now?
We all know that Victor is booming, and traffic is already a big deal in this once-sleepy town. Traffic impacts can majorly shape and change the viability of a zone change proposal, which is why traffic studies are a prerequisite in the city’s own code. Judge Boyce vacated the city’s approval of the Broulim’s rezone - which means that slate has been wiped clean. There is NO Broulim’s zone change approval any more.
Moving forward from here, the City needs to keep an open, unbiased mind for any future decisions on Broulim’s and avoid “rubber stamping” the application all over again. Now is the time for Victor to pause and develop a more detailed, fact-based record for any future Broulim’s zoning decisions. Any traffic study that is conducted by Broulim’s should be first reviewed by the Victor Planning & Zoning Commission in the context of the entire application packet. The public should be given the fair chance to review, comment, and even submit rebuttal traffic studies as needed. Then the same should be done before the Victor City Council.
What’s VARD’s role here?
Matchmaker and strategizer. We helped develop an appeal strategy, identifying the top legal issues that should be addressed by first the city council, and then the district court. We gave the concerned neighbors a realistic timeline of “what to expect” while going through the appeals process. We paired the neighbors with a local attorney who would effectively serve their needs, and helped guide them through the process.
"Deciding to sue the City of Victor was daunting. Anna's input and her understanding of the statutory process made jumping through each hoop within the required time possible. I'm thankful for Anna's insight, allowing for the Broulim's rezone approval to be vacated."Tim Wells, Sego Skis CEO
Wells added that the total legal bill for the citizens to challenge Victor's due process errors ended up being over $19,000.
The Bigger Takeaway?
It’s never a bad idea for a local government to take a second look and review the technical merits and legal issues behind such a huge downtown planning decision that, in this case, will impact all of downtown Victor. As the saying goes, it’s best to “measure twice and cut once.”
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